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tv   Mc Crory v. Harris Oral Argument  CSPAN  May 23, 2017 12:43am-1:48am EDT

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lower court's ruling. justice ileana offered the majority opinion, justice clarence thomas wrote a concurring opinion. justices brought air and ginsburg roundehere andginsburg3 ruling, chief justice roberts, justice kennedy and alito were in the dissent. the new justice didn't participate in this ruling because he wasn't on the court for the case was heard. the case was originally argued on december 5, 2016. it's about an hour. >> punic mr. chief justice may i please the court. this involves the constitutionality of two congressional districts in north carolina that should be familiar to the court because they've been before the court on multiple prior occasions. even though there are two
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congressional districts here in the north carolina congressional districts, the issues presented are actually quite distinct. with respect to the congressional district it is ths different from both the houseats delegate districts in the previous case because this is not a district that was with an intent to create a majority minority rather with respect to congressional district 12 it was a pivotal role. if that sounds familiar it is the same dynamic that was before the court. in reversing the court on the standard concluded when the state says this is a politicalaf joe race did not predominate over the growing in the district and that is essentially the same dynamic before the court now with one difference this is easier to reverse because even
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before the court gets to the standard of review, there is a legal editor here was created y my friends on the other side and the district court's failure to abide by the teaching. i think it was as clear as it could have been that in a case where you have a majority minority district or something approximating it and you have race and politics highly correlated and somebody challenging the state's suggestion that this is a political and not a racial drawl with the plaintiffs must show, not canned gourmet or not that it would be nice but they show but must show is that there are alternative ways that theve legislature could have accomplished its political goals without a comparable -- >> in that passage says in a
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case like this one it is pretty clearly falling off in ... of a case of purely circumstantial evidence rather than direct evidence of the race basedink yo districting. i think you would have heard it and it would have sounded different if the court meant in every case where the question was is this politics or race there was a requirement that passage woulpassage would do itt differently. >> i respectfully disagree for two reasons. one is there was direct evidence and indeed the direct evidence is similar in that you have evidence that the map drawer himself and taking the race into account with the treatment of the african-american community in greensboro which is guilford county. >> what i wrote was in a casese
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such as this one and then people can argue what does that mean in a case such as this one. by the time we reached theis a n alabama case there is a need seen by the majority court to try to bring clarity. we are speaking as a court. not every individual gets his own way or should. so if we go back into an area and try to reconcile the cases and come up with a complicated area a set of standards that will present prevent us from turning into [inaudible] i would start taking that caseam as at least trying to set the way in which a district court should go about deciding a case such as this one.
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>> in the following respect, they are two different cases and i will take the point that whili alabama is this what's last best guidance on how to deal with a case like alabama and congressional districts one where you have a state that says why did we do it, the voting stt rights act. we wanted to draw a majority ana minority district. it is the courts last and best word on cases like this where the state says why did we do it, politics. we look at the benchmark that had congressional district won oveoneover here which was the mt minority district and what is preserved we know how to tell you when we are taking race into account we are not playing hide the ball. we did it with respect to cd one and when it comes to 12 we look at the map and that is a political joe.
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>> that is the question was trying to answer is that politics or race if it's politics it's fine if it's race is not so let's take a hypothetical not on this case but let's take a hypotheticallir which is a state really does decide to do race-based districting premises we want to segregate all the african-american voters, this is the way they want to do it but then they say we will justify it based on politics because thatb sounds better. but there's lots of direct evidence that in fact the justification is politics but the true reason is race. were you suggesting in your first statement were you suggesting that even if a plaintiff comes in and has all this direct evidence that they are trying to do with race the plaintiff has to present its own
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maps? i would say yes and i would say why not we are talking about a situation they are asking a federal court in this case after they've already asked the state court and lost i will get into that later but we are asking a federal court to say and hold that a sovereign state legislature that says it's politics was dissembling and it's actually race that is a big thing to ask of a federal court. it is unique in the use cases which is different from what you're asking a federal court to do when the state is forthright and took race into account to comply. >> it's also a big thing to ask them to come in with their own maps if they have direct evidence that the state is doing race-based rather than politics based. >> i guess i'm a little less troubled by being demanding ofoo plaintiffs fan i am of putting sovereign state legislatures in a difficult position and if there's all that direct evidence i think the alternative is going to be a breeze.
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if there's all this direct evidence and this is just a pretext i think it is going to be easy as pie to show you could have drawn this map differently and you wouldn't have taken race into account. >> we no race and politics correlates. that is jusif it is just a facte matter but we said notwithstanding that if race is your motive you have one more result and then you get another so these maps are actually hard to do given the extensive m correlation, but direct evidence there is some in this case because they told me to get above 50% direct evidence and that makes the case for somebody. >> that direct evidence is
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incredibly helpful for my clients because the same guyad that had no problem saying it is above 50.1% also testified that he had exactly the oppositead instruction and when he drew the map he didn't even look at racial data he looked at the 2008 presidential election and the political results and drew the map to bring and democratic voters and exclude republican voters. >> didn't he say he wasn't considering except with respect to guilford county that is probably the most important piece of the discussion. >> no, he basically said there's a political drawled an drawl the to essentially check what you did with the african-american community because guilford county is a covered jurisdicti
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jurisdiction. >> we can go back to the original testimony. y >> absolutely but you look atk that to the testimony and it all fits together and again he never says when it came to guilford county i turned off theap political screen on my software. what he did is the whole time he drew the maps he left thep ther, political data precisely because race and politics are highly correlated. he drew the map to draw the republicans and democrats out and chat to his word to the covert and he didn't treat guilford county differently and he should because it's the only one cd 1 12 and he said i've got the african-american community together i don't have a problem. my friends on the other side want to take this though it is uncontroversial here that with
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respect to every other part ofrt the map race was not taken into account at all.urned th it is uncontroverted. nobody says he turned the political stuff off all he did is a cross check to make sure that there wasn't a retrogression problem which is exactly what he should do. but talk about eerierities. similarities.nd what thithis court said in givit direct evidence relatively minimal weight is to say if you look at the rest of that e-mailw they were candid about taking race into account and there is much less race involved. again, the similarities couldn't be more dead on with this case. the most you can get is that it was taken into account in some way that didn't make it predominant and the sameence he
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evidence here that if you contrast the way the voters which are preceded with respectt it's virtually impossible to think that this was all a pretext. i understand why you want to search a little bit more when you have a legislature that comes up with these racial maps and say race had nothing to do with it but when the legislature repeatedly says we treated differently i would think you would want some prettyence b substantial evidence before you second-guess that conclusion. >> if it is substantial evidence that he comes in and sits on the witness stand and assess i had a conversation with the map drawer and he says my bosses told me i have to get up over 50.1% of black votes that seems likeevide substantial evidence that points on a direct conversation he had
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[inaudible] he says he has received orders from on high. >> there's a dispute whether that conversation ever took place. in the record in this case you have to senator who protestsha that is not what happened and another witness. >> didn't that district judge say. >> but that only gets you to the point that okay maybe if he said that but it didn't get translated to the map drawer,ma they make multiple public statements that say cd 12 is a political drawl and let me get m back to this thing because you didn't just wake that comment you did it after you're anan analysis in the opinion where
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you looked at the maps. they showed they are very useful because the race and politics are highly correlated so when you try to draw an alternative map it's like guess what, you can get a better racial balance. >> i understand the problem and i think it is that it doesn't say in all cases, i mean i write that for a purpose in a case like this one is a little ambiguous but it means as time progresses we face what you and i see as the problem right now which is a set of standards that district courts can apply which will try to separate without us spending the entire term reviewing 5,000 page records. h
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that is a problem that you have by the time we get to the laterd cases. i understand the argument that you think it is determinative. i'm not so sure. >> it's not just in a case such as this on one but in a case suh as this one where it is a t majority minority district or close to approximation and race and politics are closelyourt lat correlated and i don't even gett a third criteria which is in th cases where the legislative goal was politics, not race and so you absolutely said that you r were also absolutely right and before you decide whether it is she poured and i think it is fair to say there are two breeds generally. there are the cases, the more common ones, the alabama cases, those are all cases where the state comes and i will talk about in a minute where the state comes in and says yes it
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was race. we don't think it predominated and if it did we survived strict scrutiny but there are separatet cases where the state comes in and says it was not race at all it was politics and sure they are highly correlated but it was politics and they are sensitive cases for the state because as this shows if they are found to have dissembled they don't even get to the second half of the case because i can't come up here and argue it was politics and not race. there has to be a high thresho threshold. if you want to give guidance to the lower court. say that you are going to stick with that and identified this class of cases and say that is the test for those kind of cases and it's not that it is the
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biggest burden to come up with an alternative map and if it shows the way you take into account the same extent withs better rates by pairing incumbents were making a district that looks like this which is exactly what you found you looked at those alternative maps to come up with maps in that case the alternative in that case is that they showed i- was exactly -- >> even though the district court listened to the map drawer and believe tim and the statements are pretty much against you and then they heardy the state senators and if theyis were pretty much against you and it's up to the district court to evaluate the strength of witnesses and came to thee conclusion on the basis of that but in fact it was the explanation.ve
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despite that everyone that comet in has to have an alternative map and we have five or six different alternative maps and 100 state legislatures and so forth. >> i don't think the direct evidence is of a character that material difference and i would say you're trying to get the directions for the cases everyone will be able to say i have perfect evidence. there's always going to be some direct evidence that it will differ from case to case. but i think you should do is where the state defends the politics not race, all five canp get together and pull the costs that will be minimal and give me at least one alternative map that shows you can do the same political thing without an effect on grace i don't think that is too much to ask and i
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think it would make it more and have the virtue of applying and again, every one of the court cases says this is an extremely difficult business and inherently legislative business, it is a humbling thing to have a court to second-guess these decisions. so i think in a world like that where you've already said it to say that there is an alternative map requirement as a gatekeeping function to guide a district court to give the same tools that you used to say it is easy to say that as a pretext but when i look at this, at the end of the day i will look at that in conjunction with the circumstantial evidence but i will be guided by something that says there was another way to do this and that makes me thinkth this direct evidence is more
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than it might otherwise. if they want to help the democrats and republicans vice versa they could have done it with a different racial balance. >> once it is myt that you don't need a manifestation of it you need just the use of race that predominates. that is what the constitution is intended to avoid say state legislatures go out and say it's always politics because it is easy to say politics even though there is direct evidence that it was race a hand with the added burden on the plaintiffs now where you come up and say ontak that map this takes care of this
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problem but there is another reason for not doing it that way or this way. it is impossible to ask aa plaintiff to come up with a rac mutual map. the issue is state legislatures. if they are and they have. >> at the end of the day in the districts where you have one party saying it was politics and the other says it is race you have to have a mechanism to determine which one it was. our point is everybody agrees they are highly correlated and that creates the possibility for abuse. what we are saying is this is a particular thing to save the
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state legislature especially when they are being candid about their use that as a pretty big thing and it will be the onlywe issue in the case because there isn't going to be strict scrutiny to fix it on the backend because they will say we didn't take race into account at all. it's not beyond the can of man or woman or anyone else to come up with an alternative map and giving it to be mean or imposing cost. it is useful for the analysis and you only have to look at the opinion to show how it's not going to be the case in every case. in some cases these will be able to come up with an alternative map and if i can turn my attention now to a case that is more like the virginia district in the sense that here it is it is the valid use of race to preserve the majority minority
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district. as to this one in particular it was simply based on the adoption of the 50.4% but the easiest way to affirm us to do with thee court did in the parallel state litigation which is also confronted and applied strict scrutiny but the lower court said we think that this is narrowly tailored the north carolina supreme court said district court screwed up on finding strict scrutiny but nevertheless we agree this is narrowly tailored and we think it would do the same thing here on the legal judgment that it made it easier to decide because here of course they admitted they take race into account that they were dealing with a difficult problem. they have a benchmark map that had the majority minority district.st
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it was a coalition district about a little bit north of 48% but also lost 97,000 votes so they want to preserve it as a majority minority district based on the reading of strickland and some other things they say the safest way for us to do this is to get it over 50.0% so we will tell the map drawer that we want it over 50.1% and they get therw instruction and draw the district that ends up at about 52.6%. the fact that it is at 52 and 50.1 shows that it's not like this ratio that is preserved over everything else but also i think it is worse in this case in particular to understand it's not like there was a myriad of ways to do what was done in this situation. there are two opportunities you can either draw the district to get over 50% or you can go into
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the city and get over 50% that way. the first time it got to 50%t 5. that way there was back andtheyd forth. >> with circumstances might that require assuming you are using race to what extent do you think that the contiguous district is? spinnaker requires a reasonably contiguous district and this is the situation where in order to get either county would have to extend the district to capture those territories. the additional thing i would say is i think it is telling to look at the testimony in the record because what the lower court
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found is the reason we lost on strict scrutiny if there wasn't racially polarized voting or more particularly the state hadn't done enough to show that. nobody thinks that there isn't racially polarized voting. they don't think that. he was the incumbent in the district but it's not whether it is racially polarized voting. as the representative testified, it's got to be at least 45%, 46 or 47 is probably better. the representative says it's only two thirds would ever vote in cd one said he admits it is racially polarized. all the case comes down to it's not about whether or not we like racial targets it is whether you will give the legislature the flexibility to choose between 47 or 48 on the one hand or 50.1 or
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52 on the other and in deference to legislation. thank you, counsel. >> mr. chief justice may i please the court. i would like to jump in and go through district 12 as my colleague david and talk about cd one. the problem the state has in cd 12 is the finding of predominance was more than amply supported by the record that the trial court found and we are under a clean air standard. the question as justice breyer pointed out is race is a factor in moving a significant number
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of voters in or out and it seems that the primary defense that the state has been trying to overturn the decision in the lower court is an alternative map was not introduced while certainly it is a way to reduce evidence it can't be the only way. there are a matter of ways to prove it predominated and i would point out that we offer no alternative map in the last case you heard earlier this year. in each of the cases there was no need to provide an alternative map to prove it circumstantially what existed to protect the. it's not true that the state of alabama in that case were a
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state of virginia didn't assert political motives as a defense to some of the districts. >> it does say it is a close question one side says it is racial, the other side says that his political and they have to show that the legislature could have achieved its legitimate political objectives in ann an alternative way that are consistent with traditional principles. it does say that so what is it that you suggest about that are you going to say it is not a closed case and we should overrule that?
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spinnaker i'm taking issue with the suggestion that the trial court or confused and that this is a reversal. they were not confused. >> there was some kind of evidence that they could have achieved their political objectives with less reliance on race. >> there are many things you might say. you could say that it doesn't matter because it is giving way to the district court and it's important. >> i think that the language that is being focused on is discussing the case in which you say there were lots of maps
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where each side is proving theit case through maps, through circumstantial evidence.ci in that case where you are offering a one of maps on both sides you have to offer at least one that shows that you achieved the political goals without race predominating. i would point out as an important footnote, north carolina did it draw a map in this case so it isn't a hypothetical whether they could call a map that achieve their political goals that did not gerrymander based on race because the state of north carolina after this drew a mapct and impact drew this district and get protected the republican nature.
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>> that serves to the sameli degree as the map before us? if they didn't say that i'm not sure they were able to draw another map it doesn't really prove anything. if they say this was based on politics and there's no way we could have achieved the political objective withoutved a doing this, they cannot prove a negative so it makes sense to turn to the other side and say prove that the political ends could be served without drawing the map. >> i think the problem with the reading offered is that it puts the constitutional cart before the horse. the harm is in using race as a predominant factor. there is no right to gerrymandering. it has to be protected.
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>> but the question is what was the basis was it politics or race so if no one can point to the way of the political objective other than through the map drawn. >> it may be evidence serving as a proxy for partisanship but that doesn't mean there can't b other evidence. >> would you accept in the case where there is quite strong s evidence that race was the base class >> i don't think the record cous to define the strength of the evidence. i think the map this evidence and direct testimony as evidence and like most it is not a smoking gun it is a mosaic of evidence. >> how much weight do you think the absence of a map is entitled to?
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>> i think the fact that there is a map that was enacted the race and party correlate is obviously evidence. >> but look at what it is a sad. let's talk about what the sponsors said. because of the presence of gui guilford county because of the 12 district we are drawing the black voting age level above thv percentage of the population found in the current district. that is a statement from the sponsors that it was race. what did the experts say?
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in the expert report and this i. the 1103 general assembly is mindful that it was covered by section five of the voting rights act determined it was prudent to reunify the community that could avoid the possibility of the charge of fracturing the community and inhibiting preclearance under section five co this extension further to the northeast caused the circle around the districts to increase in diameter to want to put their
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eggs in the politics not race. that was not their argument. the evidence doesn't stop there.
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the reason that happened is that it had to ramp up to over 50% to comply. >> they did make the case the because most vote for democrats and we want to get them in one district so the 15 that are thae republican is what they did last time and that is the kind of argument they make. >> they were going to be expected to so to the community that this needed to be over 50%
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to comply and you know what he said in his testimony, he laughed and said it's not possible because the people inin the district will know there isn't any reason why this has to go above 50% to comply with theg voting rights act. they also discounted the testimony that was offered by the map drawer about what he was told. that whole analysis the district court did not credit. i heard the testimony and i listened to the witnesses and i didn't credit it. can i go back to the testimony you referred to something other than what you highlighted in the brief. what you highlight is double hearsay.ai he told him that somebody elseby
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told him something and none of those people is the person that drew the map. i don't even know if that is admissible tha but if it is it s pretty weak evidence. >> there was no objection to the evidence and the trial court was all credible evidence. the supreme court can do whatever they want but the role of the appellate court is to say look you waved the credibility and whether it sounded like attenuated double hearsay against all of the direct evidence that sounded like something that is believable when charging demeanor and unlike. another thing that is overlooked is look at what the actual number came in at giving the
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coincidence yet if bound up with 50.66. isn't that a coincidence it just so happened it came in at 50.66 and they were entitled the fact that the number that came in was just a hair above the threshold is further evidence that racehe predominated. >> there was another case decided.
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i suppose their findings would also be judged by the clear standards. this is the case.seve
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the case was predominantly to use the word, predominantly about the state lines. they were challenging the congressional districts but most didn't relate to these congressional districts. it related to the statetate districts.
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it was much more conclusory in that regard in part because frankly the mountain of eviden evidence. there are other judicial mechanisms available to this court and district courtsntrol generally a.
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the other case moves through a e normal channels. the court might choose to hear c it or not but that is not an accident or fortune. d that is a deliberate decision made in structuring the review and finally i would say thatstru this is a question of the federal law and constitution and how the claims are in fact constitutional claims and the differences are under the votinr rights act and there is no reason the court wouldn't give the same normal rate to a three judge panel in those kind of cases and somehow deferred to. >> it's not a question of deterring, it is the obligation to construe the federal constitution to the same extent the federal courts to. that was a pretty
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well-established principle. >> it is also equally well-established they find them under clear air whatever the state of north carolina. we ought to give greater difference. i'm not saying we should give greater difference i'm saying we should follow the ordinary rules which is the case that is before you is the case before you and the findings of fact by the court in this case is the finding entitled. there are circumstances where there is no map for the state court they said let's let the
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state courts go first. here it's the federal constitution so there is no perspective that ought to cause you to overturn 100 plus for 200 years plus jurisprudence the plaintiffs having the right to have their case heard. should we give any consideration to the court or proceed as if it never occurred. >> it may be of interest to the court so i don't think it is entitled to any more or less deference than the decision of the north carolina supreme court in the gerrymandering case from 1998. it can inform your thinking in the case but i don't think the
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findings of fact are entitled to any weight in this case. i think that the standard applies with respect to the congressional district number one i want to make the point that this was a clear error of law to destroy the crossover district which is what they did when there was no evidence of racially polarized voting preventing african-americans from their choice. >> thank you, counsel. >> mr. chief justice i would like to start with congressional district 12, this is the one that basically everyone agrees looks terrible and the question of whether race is the
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predominant motive or whether iw was politics. this determination the court said on numerous occasions is reviewed for error and the district court had a lot of evidence that points to alo three-day trial and i want to highlight the evidence is relied upon in making the determinations and finding the predominant motive and that starts with congressman watts testimony that one of the architects of the plan told him he had to ramp up the percentage in the district over 50% said that is the racial target at the starting point to comply in the voting rights act and the then d the council mentioned we had the targets being hit on the nose on a 50.66% and then we have direct evidence of the way the states did and that came from the map maker and he said although he doodles was the first he only used politics that didn't use race he made contradictory statements and said he did use race with respect to guilford county and pulled the population
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to comply in the votin and the s act and i think if you look at the record you would see what you anticipated which is the state was pulling in concentrations of the voting agt population and the concentrations were so high that supported this interim that they were using race and there is aan chart in th the plaintiffs plaif that shows you had concentrated pulling. that's how it was done with respect to guilford county and then the last thing, they made credibility findings but the political motive had been discredited.te there is evidence that was there about the political motive but the district court found it was not credible in light of the testimony the court credited about the target and in light of the fact the political testimony that is put on by the map maker has been contradicted when he said he used race and
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contradicted those that kept trying to downplay the politics in their statements and so when we look at this you have a three-judge panel that went through three days worth of evidence and even though one that disagreed with respect to this particular holding recognized what they did was reasonable and in those cases i don't think you can find clear air. >> what do you have to say about the voting rights standard with the court decision as well this is something we have a federal case before us and not the state case and we would be reviewing their factual findings on thegs same question and now you're saying this one is here it seems to me that response isn't particularly helpful in
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addressing the conflict before us. >> the way the court deals with the two bites at the apple problem is the doctrine to find out what weight if any decision has anthedecision has and we tht is the we appropriate lens. >> it would have been a state court decided that you have toei ask if they were met. >> that leads us to favor the state court. so they said we should apply a race so what does that mean? >> the application would depend on the case out of the north carolina courts and we don't have a position on the norththno carolina law. i'm just saying the way you deal with the question as application
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through the framework as opposed to something different like now we will go to the review. >> so to decide this question and you don't have a position on what the answer is. >> if they are worried about having some effect that it would ask whether there would be three hurdles the state would have to overcome to prove and show that there was for us to go whether it was waived as addressed in debris and second of all whether the predicate the state claims is there in the third, whether the north carolina law uses a concept that is expensive. >> it's not that you want to resolve that were decided in a certain way if you are asking the way you figured out what to do is by using those principles what you don't do is defer to
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the state court findings i don't see how you do that because it is here on appellate jurisdiction we don't think he would do something like this because rule 52 that mandates the factual findings applies to this court so they should decide the case and that is the standard with respect to district 12. >> you said there were strict scrutiny fails because -- >> because they didn't give a reason to pass strict scrutiny. if only reason would be section five and that wouldn't make sense because it is to prevent rich row of aggression and it is by 7% so it wasn't a matter of preventing retrogression. we don't read the court's decision to require a map as
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asserted we take the word this and that was the circumstantial evidence of race.co they thought the direct evidence was substantial but there was evidence between race and politics and we knew the strong evidence of politics and littlee evidence of race it made sense in the context of that particular case to say the maps were put in give us an alternative that shows this is when you have a case conversely they racially predominant motive it doesn't make sense because what the equal protection clause gives you is not having race be used for an unjustified reason it is just a fiduciary. >> we think that the court tried to give flexibility improving
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racial dominance so we see it as a strong direct evidence and one other thing we don't think -- if it were adopting a math requirement for a set of cases that would have explained andha would have done something. >> going back years ago there were many states that have many black citizens and no black representation and there was a thing called a tough majority minority districts. how the stonewall allow the creation of that but not what is happening in other cases like gerrymandering. no one has a good answer to that question. if you are too tough in this case in rejecting the notion that it was politics which is correlated with race then what's going to happen to a successful
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effort to create majority minority districts where matters change, times change etc.. they are sympathetic to the states interest and think the court has tried to be sympathetic and they've done it in decisions like alabama. >> it's not just the states interest of the constitutional interest seeing the minorities have representation and reality in the legislatures. >> what the court has done is ask about racial predominance the first question was at the predominant motive not just one factor of show your evidence and here thehear they had that evidt the second thing the states that give us your justification and that is the problem in the first congressional district the state was operating on the law and it didn't provide the justification and that is with section two and section five focus on it's not
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just picking a number out of thin air but showing there is a problem with retrogression and the first congressional district in this case there wasn't evidence because the lower percentage not being a majority minority the african-american community was able to elect aa candidate of choice on a sustained basis by wide margins in the opinion is that the state didn't make the case and was operating out of the law so going back to the question wend understand that this is a delicate balance and the court has attempted to balance the interest protected in the clause against the concerned states have and the flexibility theyy p need and the strong evidence for strict scrutiny.
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>> you have four minutes remaining.ut >> thank you mr. justice. it is worth recognizing that the trial judge's looked at congressional district 12 and in four out of this base of politics, not race prevailed so it is a funny sort of wall that is going to defer to the minority of two. i don't think you can't ignore the decision on the grounds they were not specific or something. i would point you to appendix e. which is the relevant fact findings of the state trial court where they were unanimous among finding the 2011 and 20122 districts based on the whole voter tabulation in which president obama received the highest totals during the 2008 election the only information on the computer screen is selecting them for inclusion in the district was the percentage by which president obama won or
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lost and that gets to the need for the alternative into difficulty because it is all well and good to say they pulled in all these african-americans but guess what they pulled in all these democrats, too because african-americans are democrats and what they could have done it would have been simple enough is to draw a map that shows he wasn't using the presidential election results because we would come up with a different map. they didn't do that.been eas they say they didn't do that in other cases as well and i think there are two cases that reflect that. one reason is in all the cases they fough thought as long as ty could get the state to say 50% we are off to strict scrutiny so we don't need a map onma predominance is wrong and the court will say that it's wrong. second, most of the challenges
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are brought by people that are as concerned by the democraticim political prospects as the art of avoiding the race and the problem of putting an alternative map together is should you prevail, the no good dirty republicans on the other side can say you can't complain about that being a bipartisan gerrymandering because it was your map so if you want people to bring race claims and not dressed up partisan claims make them put together an alternative map that works. as to guilford county there are several responses. there's 75,000 african-americans they were all democrats as welll and that's why even there if yoh have an alternative map, bring in democrats and then you have something but the fact they were trying to bring in democrats is about as interesting as the sun
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coming up in north carolina because everybody agrees there'n a 90% correlation between race and partisan identity.el the second thing there's a very good reason we didn't make a section five defense because this wasn't a case about a guilford county. it's not that we did something nefarious to comply with section five. it's that it was drawn as a majority minority district. >> they did present both. they said proposed findings that included a substantial number on presidents and the intentional placement of a significant number is established the racial predominance. >> they would have had two problems. we would have had the section
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five defense. >> it was necessary to avoid retrogression for the section five purposes. >> everything that they said was a concern about retrogression which is why he said we avoided any problem by making sure we had a higher percentage than in the benchmark map and add was splitting the county and putting the african-americans in the neighboring republican leaning district and they would be the first to complain. >> thank you counsel, the case is submitted
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treasury secretary testifies
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thursday on the proposed 2018 treasury department budget and tax reform plan. we are alive with the senate finance committee starting 10 a.m. on c-span three. >> transportation secretary elaine chao and former first ladies and daughter chelsea clinton and barbara bush. topics include ending global poverty and in proving the lives of women and girls. this is one hour and 40 minute. [inaudible conversations]

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